Nealon, R (On the Application Of) v Secretary of State for the Home Department

An inappropriate behaviour compact imposed in prison did not engage Article 6 merely because breach might later lead to disciplinary sanctions or because the compact might be considered by the Parole Board. Article 6 applies to proceedings concerning a charge capable of resulting in a penalty, not to preliminary supervision based on unadjudicated allegations. An unsigned compact did not worsen the claimant’s position: the underlying allegations remained capable of challenge, and the additional supervision could have been imposed without the compact.

The claimant sought permission to challenge the imposition by prison officers of an inappropriate behaviour compact without a prior hearing. The compact imposed additional behavioural requirements, monitoring and possible consequences for non-compliance. It expired without breach, and the claimant had refused to sign it.

The claim was brought substantially out of time. The claimant nevertheless argued, by reference to Engel and Others v Netherlands and Ezeh and Connors v United Kingdom, that the compact engaged Article 6 because the underlying conduct might be criminal, breach could lead to sanctions, and the compact might affect a future parole decision. The court considered both delay and the alternative merits.

1. Delay. The ordinary three-month period for challenging the imposition of the compact expired in about August 2004. The claimant’s complaint to the Prisons Ombudsman did not extend or revive that period. Even if the Ombudsman’s decision had been relevant, proceedings were not brought promptly afterwards. There was no satisfactory explanation for the delay, so permission was refused on that ground.
2. Article 6. The imposition of the compact was not a criminal penalty and did not involve a finding of an offence. Similarity between the underlying facts and conduct that might be criminal in another context was insufficient.
3. The possibility that breach of the compact might later lead to an adjudication or other penalty did not engage Article 6 at the earlier stage. The reference in Engel and Others v Netherlands to the severity of the penalty concerned a person facing a charge capable of attracting that penalty. It did not concern a person placed under supervision who might incur a penalty only if he later committed a further act.
4. The unsigned compact did not place the claimant in a worse position before the Parole Board than unproved allegations would have done. He remained free, and required, to challenge the allegations. The compact therefore did not create a material additional impact on liberty.
5. The compact supplied additional controls and supervision during its operation. It was a sensible administrative mechanism and there were no grounds for challenging its imposition. The application was dismissed.